July 31, 2007

D.C. Circuit Issues Major FOIA/Privacy Act Decision

The D.C. Circuit has issued an opinion in the case of Michael Sussman v. U.S. Marshals Service which touches on a number of FOIA and Privacy Act ("PA") issues. The procedural history of the case is complex and somewhat confusing--in short Sussman was appealing a D.C. District Court grant of summary judgment for the Marshal Service pertaining to Sussman's FOIA and PA requests to the Marshals Service and an allegation of a PA violation by the Marshals Service. The Circuit Court remanded many of the grants of summary judgment on the FOIA request and all matters concerning the PA. I'll try to touch on the major points of the decision.

The Court remanded the District Courts finding on FOIA exemptions 2, 3, 7(A) and 7(C). While the Court held that certain internet addresses were ok to withhold pursuant to exemption 2, it found that the government did not meet its burden of proof for this exemption on material it described as "information reflecting communications between agencies" and remanded the withholding of that information back to the District Court for further findings. The invocation of exemption 3 for information pertaining to grand jury proceedings (FRCP Rule 6(e)) was also remanded for further findings because the agency did not properly show that disclosure of the information would violate FRCP Rule 6(e).

Findings related to the government's use of Exemption 7(A) were remanded as well. The agency's declarations did not show how disclosure would reveal the focus of a grand jury investigation which would in turn cause interference to the investigation. Further, on remand, the ongoing proceedings must be pending at the time of the District Court's decision, not at the time of the earlier FOIA request. Those knowledgable with FOIA issues, know this is a further explanation to a line of cases following the Court's Maydak v. Department of Justice decision decided in 2000.

As to Exemption 7(C), the Court remanded the issue so that the District Court could decide if a third party gave an adequate waiver for FOIA purposes. The Court found that the issues surrounding the waiver of the third party, even though it arrived late in the proceedings, must still be decided by the District Court.

Procedurally, the Court reiterated its now long standing policy that District Courts must make a segregation finding for its decision to be properly made. The Court also found that an agency's invocation of an exemption on a motion for reconsideration did not waive the exemption.

Finally, the PA count was remanded because the District Court only addressed the search efforts of the government in terms of FOIA, not the PA. The search under PA is important because it will determine if the records pertaining to the requester were found in documents located in PA systems of records. The unlawful disclosure count of the complaint was also referred to the District Court for further findings.

This case is important because of the many areas the Circuit Court made specific findings on areas of FOIA law. I probably missed some of them, but I'm sure others, such as the fine newsletter accessreports will have an extensive overview of this case in the near future.

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One of the most important decisions in the opinion was that the Court rejected the Government's argument that Exemption 7(A) is subject to a lesser standard of proof.

Also, the Exemption 3 argument with respect to the grand jury documents now requires the Government to show that the materials were actually prohibited from disclosure by a specified person. In this case, the Government argued that Exemption 3 applied because the "grand jury" was considering the matter. The decision will require the Government to stop using such vague claims and actually show that the materials originated with the grand jury.